Category Archives: Employment Law

The IRS Weighs In On What Information An Employer Can Request To Substantiate FFCRA Eligibility

Yesterday the IRS issued some FAQs on the FFCRA.  On the important question of what documentation is needed from the employee in order for the employer to seek tax credits for the paid leave provided under the FFCRA,  the IRS said as follows:

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

While the IRS is the entity that will approve or deny the request for the tax credit, the DOL is responsible for enforcing the FFCRA.  Hopefully, the DOL’s regulations will be consistent on this issue, and it is my expectation that they will be.

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FFCRA and CARES ACT WEBINAR

Yesterday, my partner Kevin Perkey, who focuses his practice on tax law, and I presented a Webinar entitled COVID-19: THE IMPACT ON YOUR BUSINESS AND EMPLOYEES.  The webinar focuses on the FFCRA and certain provisions of the CARES Act.  Thank you to the hundreds of you who watched.   If you were unable to watch the Webinar, or want to see it again, it can be accessed at the following link. https://vimeo.com/401032682/9969809358

Also, one clarification on the small business (under 50 employees) exception.  While it does apply to both Expanded FMLA and Emergency Paid Sick Leave, it only applies when leave is requested because the child’s school or place of care is closed, or the child care provider is unavailable, due to COVID-19 related reasons.  And if that is the reason you still must show that one of the following apply:

 

       1.The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  

       2.The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  

      3.There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

 

Again, the DOL expects you to act in good faith when claiming this exemption and in all of your efforts to comply with the FFCRA.

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DOL Clarifies FFCRA Small Business and Health Care Provider Exemptions

Late Saturday afternoon the Department of Labor issued more FAQs on the FFCRA.  These additional FAQs provide guidance on two subjects I have received many questions about:  1. What employees qualify for the “health care provider and emergency responder exemption”?; and 2.  What must I show for the small business exemption to apply?

The health care provider and emergency responder exemption allows the employer to designate certain employees as exempt from the FFCRA’s provisions.  In a bit of a surprise the DOL clarified that, for the purposes of the FFCRA health care provider and emergency responder exemption, a health care provider is “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy , or any similar institution, employer, or entity.”   Furthermore, any individual employed by an entity that contracts with any of the above institutions or employers is also included in the definition of “health care provider” for the purposes of the FFCRA exemption.

Emergency responder is equally broad, and includes anyone in law enforcement, firefighters, paramedics, EMTs, 911 operators, and military and national guard among others.

On the small business exemption the Department of Labor states:

 

  1. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
    1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
    2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  
    3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

 

The Department of Labor makes clear that the business does not have to “apply” for the exemption, and does not have to call or write the Department to seek exempt status.  Instead, an authorized officer must make the call that one of the three tests set forth above will be met.  The Department does stress that it expects employers claiming this exemption to have documentation to support their claim.  This could include, for example, financial documentation showing that complying with the Act and granting leave will cause business expenses and financial obligations to exceed available business revenues, a description of how letting the employee with specialized skills take leave will create a substantial risk to the business’s ability to continue to operate, the lack of availability of qualified replacements who are ready, willing and able to work, and other similar documentation.

The Department of Labor has also stated that it will grant a 30 day grace period on enforcing penalties to those employers who have violated the FFCRA but have acted in “good faith ” in doing so.  With this small business exemption, make sure there are facts to support your claim so that you are at least acting in good faith in the event the Department determines your business is not exempt.

 

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DOL Updates FFCRA FAQs

Last night the DOL issued updated FAQS for the FFCRA ( that’s a lot of alphabet soup!). You can find the new FAQs here https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

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DOL Releases Required FFCRA Poster

The DOL just released  the FFCRA poster that covered employers ( those with less than 500 employees) must post.  It must be posted  in a conspicuous place that is a high traffic area for employees .  This is usually the break room, the employee bulletin board- you know, where you post your other workplace required posters.

 

Here is the link https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

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DOL Says FFCRA Is Effective April 1st!

On March 18th the President signed the Families First Coronavirus Response Act ( FFCRA) which provides for expanded FMLA and Emergency Paid Leave in certain limited circumstances related to the Coronavirus pandemic.  You can read my recent blog posts on the FFCRA for more detail.  Yesterday the DOL issued some guidance, which provided some clarity on a few issues, including the effective date of the FFCRA.

The DOL states that the FFCRA will be effective April 1st, which is one day earlier than everyone expected.  This is not a case of the DOL changing the rules, since the FFCRA states that it will be effective “no later than 15 days from passage”.  Still, you have one less day to prepare.

The  DOL also clarified the following issues:

  • Overtime must be included when calculating pay due to employees under the FFCRA
  • Paid Sick Leave is capped at 80 hours
  • Paid Sick leave and Expanded FMLA run concurrently

And, the DOL had this to say about the potential small business exemption from the FFCRA that I have had so many questions about:

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

So, more details are forthcoming about the potential exemption, but apparently submitting information to the DOL in order to “apply” for the exemption will not be necessary.

The DOL is supposed to issue FFCRA regulations in April.  Until then, you can get additional details from the DOL by accessing this link

www.dol.gov/agencies/whd/pandemic/ffcra-questions

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Knox County Essential Businesses Under Safer At Home Order

On Monday March 23rd Knox County Mayor Glenn Jacobs issued a ” Safer At Home ” Order. The Order takes effect at 12:01 a.m. on March 24th ( midnight tonight).  Under the Order the following are deemed Essential Businesses which can continue to operate with certain restrictions in place:

SECTION 4

This Order does not apply to the following sectors and businesses and their employees as essential services to protect the health and well-being of all individuals residing or working in Knox County.

  • Federal and state offices and services, and private companies or individuals performing under federal, state, or local government contracts;
  • Essential government functions including, but not limited to, law enforcement, public transportation, and businesses that provide government programs and services, including functions assisting economically disadvantaged populations and individuals experiencing homelessness;
  • Companies providing media, communication and telecommunication services;
  • Grocery and beverage stores, farmers markets, food banks, caterers, convenience stores selling food, agriculture, food manufacturing and processing, feed mills, and other businesses that directly support the food supply, including but not limited to farming, livestock, and food cultivation;
  • Health care, mental and behavioral health, biomedical research, laboratory services, and other businesses that directly support the healthcare industry including, but not limited to, health information technology, staffing and supplies;
  • Sanitation and waste removal;
  • Energy, water, and sewage businesses and services;
  • Pharmacies, medical supply, and other businesses that directly support the drug and medical supply pipeline;
  • Vehicle fuel, support, and service stations, vehicle parts and repair businesses, and vehicle sales, leasing and rental businesses;
  • Banks, savings and loans, insurance companies, accounting businesses, and other business that directly support the insurance and financial services sectors;
  • Real property marketing, leasing, purchase, and sale services;
  • Legal and judicial services;
  • Laundromats, laundry, and cleaning services;
  • Home and business structure and equipment repair, hardware, building supply, and appliance sale and repairs;
  • Warehousing and storage facilities;
  • Construction, architectural, engineering, or surveying services;
  • Product logistics, transport, and distribution businesses;
  • Parcel transportation and delivery businesses;
  • Veterinary and pet supply business and services;
  • Home and business cleaning and maintenance services;
  • Educational institutions, public and private K-12 schools, private colleges and universities, trade schools, post-secondary, and technical colleges, but only as needed to facilitate online or distance learning and essential functions;
  • Landscaping and nurseries;
  • Production, distribution, and sale of household consumer goods such as cleaning and personal care products;
  • Essential building maintenance and security;
  • Individuals whose job functions require them to be at their work location and who are essential to preserving the information systems, accounting, and human resource infrastructures of any business which is otherwise in substantial compliance with this order;
  • Nonprofit entities providing support and assistance for the COVID-19 epidemic; and
  • Other businesses and services that may be determined are essential for the continued safety and security of Knox County.

 

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KNOX COUNTY ISSUES SAFER AT HOME ORDER

Today Knox County Mayor Glenn Jacobs issued a ‘Safer At Home” Order.  The Order takes effect at 12:01 a.m.  on Tuesday March 24th and will last for two weeks.  During that time only “essential businesses” may operate.  The County has promised that a list of essential services will be on its website http://www.knoxcounty.org. Once I have the Order I will publish more details about what is an essential business and other details.  Stay tuned!

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Emergency FMLA and Paid Sick Leave- What Employers Need To Know

On March 18th President Trump signed the Families First Coronavirus Response Act.  This new law requires certain employers to provide emergency limited paid and unpaid leave under the FMLA and emergency paid sick leave in certain limited circumstances.   Some of the highlights are discussed below.

Beginning and End Date: Both the expanded FMLA and the emergency paid sick leave provisions  take effect on April 2, 2020 and expire on December 31, 2020.

What Employers Are Covered?  Both provisions apply to all employers with fewer than 500 employees, including public agencies.  Both allow employers of an employee who is a healthcare provider or an emergency responder to elect to exclude the employee from these two provisions. Both also allow subsequent Department of Labor regulations to exempt small businesses with fewer than 50 employees if applying these provisions would jeopardize the viability of the business.

Who Is Eligible?  Under the FMLA provision both full and part-time employees who have been on the employer’s payroll for 30 days are eligible.  But the paid sick leave provision applies to all employees, regardless of length of service.

What reason qualifies for the FMLA expansion? This is limited to an employee who cannot work or telework due to the need to care for the employee’s minor son or daughter if the minor child’s school or place of childcare has been closed, or the childcare provider is unavailable due to a “public health emergency” with respect to COVID-19 declared by a federal, state or local authority. Basically, it is “caregiver leave”.

Is any of this expanded FMLA leave paid?  Yes.  The first 10 days (two weeks) are unpaid, but an employee can substitute accrued paid leave, including the new emergency paid sick leave. The remaining leave ( a maximum of 10 weeks,  as the total available is still 12 weeks) is paid at 2/3 of the employee’s regular rate, for the number of hours the employee would be otherwise scheduled to work.  This pay is capped at $200 a day and $10,000 total.

Is expanded FMLA leave job protected? Yes, the employee must be restored to the same or equivalent position.  However, there is an exception for employers with less than 25 employees, if the employee’s position no longer exists due to operational changes related to the public health emergency, such as a reduction in force or restructuring because of a downturn in business.

What qualifies for emergency paid sick leave? The inability to work or telework due to any of the following:

  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health-care provider to self-quarantine because of COVID-19;
  3. The employee is experiencing symptoms of (you guessed it) COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for an individual ( note, NOT a family member) subject to a quarantine or isolation order, or advised to quarantine or isolation;
  5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions;or
  6. The employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor ( a catch-all!)

How much emergency paid sick leave is required? 80 hours maximum, but available immediately, so no accrual requirement.   Paid at the regular rate of pay for reasons 1-3 above (employee is sick), with a maximum of $511 a day and $5,110 in total.  For reasons 4-6 above (caregiver reasons) it is paid at 2/3 the regular rate of pay, with a maximum of $200 a day and $2,000 in total.

Can I require  employees to use paid leave under an existing policy before using this new emergency paid leave? No. The emergency paid leave is supplemental.

Does the unused emergency sick leave carryover ? No, the unused leave does not carryover to the next year.  It also does not have to be paid upon termination under this law, but your state law might require it to be paid, so check that before you make a final decision.  Under current Tennessee law, so long as you state in the policy that it will not be paid upon termination you do not have to pay it.

Do I get a tax break? Potentially under both the expanded FMLA and the emergency sick leave provisions.   Talk with one of the lawyers at my firm who does tax law, or your accountant.

Of course, you cannot retaliate against an employee for exercising his or her rights under these new laws. You will also have to post a Notice detailing these laws, and the Department of Labor is  in the process of drafting that Notice.

There are a lot of issues and open questions with these sweeping changes.  If we can help you to further navigate these uncharted waters please give us a call.

 

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Coronavirus Concerns For Employers

Coronavirus concerns are international.  Universities are cancelling in-person classes.  Professional and collegiate sporting events are being cancelled.  Travel bans are in place.  In New York state, the National Guard was deployed in an effort to create a “containment zone” in New Rochelle.  But what can employers do when faced with issues created by the Coronavirus?

The EEOC weighed in on this issue last week, and provided some helpful guidance on how employers can manage Coronavirus concerns and still comply with the ADA.   I have summarized the EEOC’s answers to 3 key questions below.

In an effort to protect their workforce, how much information may an employer request from an employee who calls in sick?

The EEOC stated that ADA-covered employers may ask the employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat.  This information must be maintained by the employer in a  confidential medical record in compliance with the ADA.  Furthermore, the EEOC stated that these inquiries are not disability related if Coronavirus is like the seasonal flu.  And, if the Coronavirus becomes more severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of Coronavirus poses a direct threat to the health and safety of other employees. 

Does the ADA allow employers to require employees to stay home if they have Coronavirus symptoms?

Yes.  Employees who become ill at work with flu-like symptoms should leave work and advising them to do so is not a disability-related action.  And, sending them home would be permitted if the illness were more severe, as the individual would pose a direct threat to the health and safety of others. 

While not addressed by the EEOC, sending an employee who has a severe case of Coronavirus home may be required under OSHA’s “General Duty Clause”, which requires employers to furnish a “place of employment … free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”

The EEOC also confirmed that the  ADA allows employers to require a doctor’s note certifying the employee’s fitness for duty when returning to work.  Again, this is not a disability-related inquiry, and if the illness is severe, the inquiry would still be justified to avoid a direct threat.

The EEOC’s Guidance does not address whether an employee who is sent home must be paid, because that is not one of the laws the EEOC enforces. That answer depends on whether any work is performed and whether the employee is non-exempt or exempt under the FLSA.

Hourly employees are only paid for hours worked, so if an employee will be working from home he or she must be paid for the actual time worked.  If the hourly employee will not be working from home, he or she gets no pay while out of work.  An employer can allow the employee to use accrued PTO or sick leave. Salaried, exempt employees must be paid their normal weekly salary if the employee performs any work that week.

The Coronavirus is definitely cause for concern.  Employers who act responsibly and in accordance with the EEOC and other guidance, don’t have to add employment law concerns to the list.

 

 

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